Untitled: A reply to Gabriel Crouse's criticism

Authors say that land administration systems are dysfunctional or irrelevant for majority of population

A response to Gabriel Crouse’s criticisms of Untitled: Securing Land Rights in Urban and Rural South Africa (UKZN Press, 2017)

Can individual land titling provide the security of tenure that all South Africans, black and white, poor and rich, are demanding? If not, what are the alternatives? Our co-authored book, Untitled: Securing Land Tenure in Urban and Rural South Africa (2017, UKZN press) attempts to answer these key questions. In two articles, published within days of one another (23 and 25 July in Politicsweb), free-lance journalist Gabriel Crouse takes issue with what he regards as the central arguments of the book, but has succeeded only in thoroughly confusing his audience.

One core thesis of the book is that the system of registration of titles has failed most South Africans, and, without institutional re-wiring, is likely to continue to fail them. Another is that individual titling cannot secure shared rights to the commons, such as grazing areas, held by groups of people in communities of varying definition and scale.

Our book nowhere condemns titles per se, but is concerned with why there is a severe misfit between the titling package as a whole, and realities on the ground. We conclude that the current configuration of the property system favours those who already have assets, and continues to marginalise those without assets, whether or not they have title deeds. In other words, titles do not create wealth, but they work well only for those with wealth. This inflection, rather than an ‘anti-title’ stance, is the implicit golden thread that runs through the book.

The title of the book, ‘Untitled’, underlines the irony and pathos of how issuing paper titles has not reconfigured, and cannot reconfigure, the property relations that underlie wealth and poverty. Put quite simply, converting ‘untitled’ rights into legally recognised rights is more complex than providing possession of a paper title, but it does not exclude the possibility of title.

The authors are only too well aware of the clamour by the poor for greater tenure security by way of recorded rights (itayitile in isiXhosa). To think that the book takes a judgement regarding whether or not people who live on properties should have individual title deeds is a clear indicator that Crouse has missed the book’s purpose, which is to interrogate why title is so ambiguous in South Africa. One extreme manifestation of this ambiguity is that a significant number of title holders continue to regulate their property transactions (both succession and sales) outside the law, and this number is not diminishing.

Title deeds are hardly new to African communities in South Africa. Large areas of the Eastern Cape and KwaZulu-Natal were surveyed and titled in the late nineteenth century by the British. The chapter in our book by Kingwill that analyses the cases of Rabula and Fingo Village, traces the trajectory of these titles over all the generations since first registration in the 1850s. It shows how the land devolved to families as a whole and not to individuals, and this came at the expense of keeping titles updated. There is conclusive evidence that succeeding generations avoided registration in the name of an owner who would have proprietary powers to dispose of what they call in English ‘family property’, and thus dispossess family members who trace relationships through particular customary modes of kinship, just as Europeans trace their modes of kinship in certain ways.

The new institution enabling group ownership for land reform beneficiaries, the Community Property Association (CPA), has also failed to provide a model that mirrors a commonly held form of tenure, which is ‘family property’, and also requires singular ownership of the commons by the institution, rather than shared rights to the commons. Thus individual and group title holders tend to reconfigure titles to fit their familial circumstances, and in the process, many legalities are forsaken. This can cause tremendous family or community disputation unless the local social rules are observed (and these are currently lacking constitutional regulation). The commons in CPAs have also been used to facilitate individual accumulation by well-educated committee members rather than for community use.

So the intriguing question should be, how have these ambiguities in land tenure come about? Such a question may indeed be vexing to journalists and policy makers who wish for quick fixes, but our view is that if we do not understand the causes of the problem, we are unlikely to come up with solutions that will work.

In 1993, the South African government passed a somewhat puzzling piece of legislation, the Land Titles Adjustment Act (No. 111). The Act states its purpose as being to regulate the devolution of land to which people claim they have ownership but do not have registered title deeds in respect thereof. How does this anomaly come about?

The Act, which remains on our statute books, has a long history that stretches back to the infamous 1927 Native Administration Act (No. 38, section 8), which was the crowning moment of socio-legal segregation between black and white in the Union. It delegated African land rights —along with almost every aspect of African family life and property— to the realm of ‘administration’, meaning family life was to be regulated by proclamation, beyond the reach of the legislature. Section 8, dealing with titles adjustment, was designed to cover up for the considerable faultlines that had emerged in the titles of registered black property owners, of whom there were many thousands at that time.

The Titles Adjustment Act is a legacy of legal frameworks that do not match social realities and for this reason will never solve the problem, but merely plaster over the cracks. The law regulates what the state must do when the descendants of the original title holders claim ownership to the properties that their families hold de facto, but the titles do not reflect the names of the current owners. The law makes it possible to update the ownership information on a registered title deed, where the registered owner’s name on the title is that of an antecedent (as far back as three or four generations in some cases).

This is known as ‘dead man’s title’ and large swathes of black-owned land in South Africa are affected: hundreds of communities in the Eastern Cape former homeland and Border regions, greater Durban (Inchanga) and Pietermaritzburg (Edendale), Blaaubosch, Emadadeni, among many others.

One consequence of the unravelling of title deed accuracy is that services that require servitudes or subdivision and expropriation (such as, bulk water and sanitation, electricity) cannot be delivered because servitudes require the consent of the legal owner. It is this entwined bundle of regulatory frameworks and institutions, taken together with the private sector professions that facilitate property subdivision and transfer (conveyancers, surveyors and planners) that our book refers to as ‘the edifice of registered ownership’.

A central thesis of the book is that there is a profound disjuncture between the system of title held by individuals (and the edifice built on this foundation), and the system of family and community property that predominates in South African rural and urban communities. Even in the case of smaller more nucleated branches of families who migrate to urban informal settlements and RDP houses, owners retain an element of familial relationships in gauging who succeeds to property and who has powers to transact it. The book grapples with this ‘gap’ between law and practice.

The idea of publishing the findings of decades-long investigations and research in a book by way of a number of case studies arose when the researchers collectively began to see that similar patterns appeared across a range of highly differentiated tenure contexts, such as various ‘communal’ settings, freehold, informal settlements, inner city buildings and even white commercial farms.

By our estimates, in 2011 some 60 percent of all South Africans held land or houses outside of the formal system of property rights, which we characterised as “off-register” in the book. Land administration systems are dysfunctional or irrelevant for a majority of the population. It is no surprise, then, that many professionals, particularly those in the geomatics field, are increasingly acknowledging the nature of the problem. They know that there is a severe disconnection between conventional surveying and the realities of geo-spatial relationships in customary and locally-regulated tenure settings. Many are searching for adaptations of conventional approaches to titling that use modern information and surveying technologies.

Crouse, however, appears not to have understood our arguments. He does not engage with the detailed evidence that the book presents, but instead equates our views with ‘racial essentialism’ and even more bizarrely, with racial nationalism. He appears to think that we take an anti-title position on principle, which he says make us “race nationalists”, pro-chiefs and anti-democratic.

He takes issue in particular with one of the chapters, a case study by Hornby on how land tenure works in a semi-rural settlement, Ekuthuleni. Crouse admits that Hornby’s work in Ekuthuleni, which began in 1998, was completed in 2005, and that his recent interviews of Ekuthuleni committee members indicate that a very different context now exists. Key differences between then and now which he does not acknowledge include the fact that former Induna William Mnyandu was still alive in 2005 and is now deceased, and that his house and that of committee member, Charles Nxumalo have since been burnt down by pro-chief vigilantes who have an interest in the iron ore prospecting taking place in Melmoth.

As editors of Untitled, we chose to publish the Ekuthuleni case even though it was dated because it clearly illustrates the key problems of tenure insecurity and the failings of conventional approaches. By not presenting the key arguments and misrepresenting the case study, Crouse unfortunately contributes to misconceptions about the tenure debate in South Africa.

As the book states explicitly, these misconceptions have had the unfortunate effect of firstly, polarising debates around a ‘pro-’ and ‘anti-title’ position, and secondly, around the meaning or interpretation of ‘custom’. The aim of the book was rather to synthesise and make sense of the many thorny and persistent problems around tenure reform that recur in a wide variety of settings. In Kingwill’s chapter on Rabula and Fingo Village, the title holders’ ownership goes back one and a half centuries, yet many of the key issues discussed in the book are to be found there too. Crouse does not mention any of these findings, but simply reduces the issue to the authors’ apparent obsession with African-ness.

The complexity and diversity of the problems we observed simply cannot be resolved by the issue of individual titles in the way that Crouse would have it. In one respect we are actually in agreement with him (though he thinks the opposite), in that we agree that titling and consequent legal transactions in property are based on a ‘social compact’, though the converse is also true, that off-register transactions are also based on social compacts. The authors sought to find a concept that encapsulates the norms of locally regulated and ‘customary’ tenures to distinguish them from the legal norms of registered tenures, and struck on the term ‘social tenure’. The authors fully understand that all property relations are reflections of social relationships, whether they are legally recognised or not; indeed this is the book’s central tenet.

Drawing on the Peruvian economist, Hernando de Soto, who was at the height of his international popularity before the United States and European mortgage market crashed in 2007 and 2008, Crouse argues that extending title to unregistered properties will convert them into tradeable assets. In De Soto’s words, this will turn dead assets into living capital, and generate lending to be invested in small businesses, which will in turn spark trade and economic growth and a generally happy outcome for all.

But there is now mounting evidence across the globe, including in Lima in Peru, where the de Soto plan was first executed, that the expected outcomes have failed to materialise.

Financial institutions acknowledge that they do not extend credit to all title holders, but only to those who show that they can repay the loan and only to those who hold title in areas where banks are prepared to lend – often excluding areas where poor households live. Titling is an expensive investment for a state to undertake, as other neighbours in Africa have discovered, and it would be unfortunate if the purpose for which it was undertaken proved to be based on false assumptions, such as those peddled by de Soto.

Another concern is who exactly should get title? In the Ekuthuleni case, which Crouse dismisses as undemocratic and pro-traditionalist, members of the 232 households who lived on the farm were interviewed in order to understand how they viewed ownership of their parcels of residential and arable land. Land in these kinds of contexts is held by families, not individuals, with the head of house articulating the wishes and interests of the family. The family holds its land and home in perpetuity, without the need for conveyancers and surveyors to delineate each generation’s share.

Property descends down the male line, and married women have relatively little control over the family property relative to their titled sisters. How would titling policies respond to the potential eviction of these women, or should the state declare patrilineal systems illegal? Who should decide? At Ekuthuleni, as elsewhere, residents also view the commons as belonging to a wider group of accepted community members, a system of shared rights which South African law cannot easily recognise. Institutions to govern the commons effectively at local level are required, and titling does not address this need in any way.

A simple means of adjudicating rights within a complex social system with layered rights does not exist in South Africa, neither is it a simple proposition to develop such a system. These overlays of secondary rights under primary rights exist all over South Africa’s tenure landscape, and not only in so-called ‘traditional’ areas under chiefs. They occur on commercial farms, in inner city buildings and informal settlements. These rights all enjoy legal protection in terms of various tenure laws, but how adjudication between competing claims can occur is far from clear.

In conclusion, the failure to distinguish between the institutional system of governance of land administration in South Africa as a whole, and the simple ‘issuing of title deeds’, has Crouse off course. The former has roots that remain embedded in the land dispossession that took place in segregationist and apartheid-era South Africa. The property structure as a whole is hierarchical, which the possession of title in itself will not have the power to render more egalitarian. Rolling out title deeds with no regard to the intricacies of what rules and contents lie inside the title, reduces complex tenure issues into simplistic and unhelpful single-issue conceptions of property rights.

South Africans must acknowledge that we have a complex land problem in this country, and wishing it were not so does not help provide solutions. If we do not engage in this debate, we are at risk of creating a most costly titling programme that will fail to meet its objectives, and is likely to unravel before it is even complete. In RDP housing estates there are clear signs that it has already begun to unravel. We think that this concern is worth debating.